Right First Time: A practical guide for public authorities in Scotland to decision-making and the law - third edition

Step 2 | Process: Investigating and evidence gathering process

13. Does the power have to be exercised in a particular way, e.g. does legislation impose procedural conditions or requirements on its use?

14. Have I consulted properly?

15. Will I be acting with procedural fairness towards the persons who will be affected?

16. Could I be, or appear to be, biased?

17. Am I handling data in line with data protection and freedom of information obligations?

Question thirteen - 13 Does the power to make the decision have to be exercised in a particular way, e.g. does legislation impose procedural conditions or requirements on its use?

Correct procedure (or “due process”) is vitally important, because there are some tried and tested procedural mechanisms which are likely to secure a just outcome and demonstrate the rule of law. The so-called “rules of natural justice” are rules of procedure. What amounts to a fair process may vary depending on the circumstances. As a general rule, however, a person likely to be affected by a decision should be given adequate notice to allow them to make representations. This may mean that they have a right to an oral hearing or it may just allow them an opportunity to make written submissions. If there is available evidence then there must be an opportunity for all parties to consider and make representations. In determining whether there has been a fair hearing, the courts will consider whether there has been equality of treatment.

In a case involving an application for the renewal of a licence to operate a taxi booking office, the police lodged, in response to the application, a letter of objections based on the taxi operator’s conduct in another council area. The licensing authority then refused to renew the licence. The Court held, on appeal, that the licensing authority was entitled to expect an applicant to provide information or evidence in response to the alleged misconduct. The applicant had failed to provide any evidence and therefore the taxi licensing authority was entitled to come to the decision it did.

Glasgow City Council v Bimendi [2016] CSIH 41

Legislation can also impose specific procedural conditions or requirements which must be satisfied before a power can be exercised.

For example, legislation might stipulate that the Scottish Ministers or another public authority must:

• consult with particular persons;
• publish a decision in draft;
• make due inquiry;
• consider any objections before making a decision.

These procedural requirements are important, and failure to comply with them may make a decision invalid. The decision-maker will need to fulfil them (and be able to show that they have been fulfilled) in spirit, as well as literally.

Occasionally, if the requirement is technical, or breach of the required procedure does not defeat the purpose of the legislation or damage the public, a failure to satisfy it will not necessarily be fatal to the decision. It might be for example that the legislation required a public authority to carry out a function within a certain time limit. If the public authority performed the function, but was a bit late, the courts might hold that there had been substantial compliance so that the breach could be overlooked.

Nevertheless, it goes without saying that it is best practice to err on the side of caution and comply with procedural requirements.

A decision by a local authority to close a day care service for adults was reduced where it had failed in its public sector equality duty under the Equality Act 2010 s.149 in the absence of carrying out either an equality impact assessment or consultation with users’ families, frustrating their legitimate expectation.

B v Scottish Borders Council [2022] CSOH 68

See also in particular

question ten

Will I be complying with equality legislation?

question fourteen

Have I consulted properly?

question fifteen

Will I be acting with procedural fairness towards the persons who will be affected?

question sixteen

Could I be, or appear to be, biased?

Question fourteen - 14 Have I consulted properly?

Consultation with the persons likely to be affected by the decision is very often part of the decision-making process. It helps to make the process a transparent and fair one and helps to ensure that the decision-maker is in possession of all the relevant information, so that the decision is a “rational” one as well.

The Court held that the Scottish Ministers’ replacement scheme on the reimbursement of nursery or other childcare settings of the costs of providing milk to children was unlawful. The reason for this decision was that the Scottish Ministers did not undertake proper consultation on a key aspect of the policy, namely the local serving rate. That rate was the basis upon which the periodical payments, made in advance by local authorities to nursery or other childcare settings in relation to the cost of milk, were calculated. It was also held that the fixing of the rate was irrational.

School and Nursery Milk Alliance Ltd v Scottish Ministers [2022] CSOH 11

Consultation is generally desirable whether it is required by legislation or not. Where consultation is undertaken it has to be conducted properly if it is to satisfy the requirement for procedural fairness. Four conditions have to be satisfied:

• consultation must be undertaken when proposals are still at a formative stage;
• sufficient explanation for each proposal must be given, so that those consulted can consider them intelligently and respond;
• adequate time needs to be given for the consultation process; and
• consultees’ responses must be conscientiously taken into account when the ultimate decision is taken.

Failures of consultation (and indeed other lapses in due process) usually occur through inadvertence on the part of the decision-maker and the pressures of work. When such a lapse forms the basis of a challenge to the decision, the decision-maker may be tempted to say, “but it was an open and shut case. Consultation would have made no difference. The decision would inevitably have been the same.” That may well be true, but the courts are unlikely to be sympathetic to such a response. And for good reason: the principle is that only a fair procedure will enable the merits to be determined with confidence, and must therefore come first.

The Court held that the consultation process undertaken by the Scottish Ministers prior to making amendments to Scottish Planning Policy in relation to housing developments in December 2020 had been so unfair as to be unlawful. The consultees had not been put into a position to properly consider and respond to the consultation request, and they were not told enough, and in sufficiently clear terms, to enable them to make an intelligent response.

Graham’s The Family Dairy (Property) Ltd v Scottish Ministers [2021] CSOH 74

See also in particular

question thirteen

Does the power have to be exercised in a particular way, e.g. does legislation impose procedural conditions or requirements on its use?

question fifteen

Will I be acting with procedural fairness towards the persons who will be affected?

question eighteen

Have I taken necessary considerations into account, and is my decision reasonable?

Question fifteen - 15 Will I be acting with procedural fairness towards the persons who will be affected?

As well as acting within the limits of its powers, the decision-maker will also need to come to a decision in a procedurally fair way. Without such procedural fairness, even if the decision-maker is not acting ultra vires, the decision may still be unlawful.

The common law recognises procedural fairness, or the existence of “due process”, as a key principle of just decision-making. Fairness is a concept drawn from the constitutional principle of the rule of law, which requires regularity, predictability and certainty in public authorities’ dealings with the public.

Where legislation confers an administrative power there is a presumption that it will be exercised fairly. What is “fair” will depend on the particular circumstances in which the decision is to be taken and may change with the passage of time. Such principles cannot be applied by rote and what is fair depends on the context of the decision. It will be important to look at the terms of the legislation and the parameters in which the discretion is to be exercised. It will often be necessary to allow a person or persons who may be adversely affected by the decision to have an opportunity to make representations and to have notice of the information on which the decision is to be based.

In a case involving appeals by two councils against decisions of the Scottish Information Commissioner one of the grounds of appeal was that the Commissioner’s decisions were unlawful as there had been procedural unfairness. The councils had argued that the information sought could be obtained by paying for Property Enquiry Certificates. Providing the information free of charge would, as well as involving the councils in a great deal of additional work and expense, prejudice their commercial interests. Without the knowledge of the two councils, the Commissioner’s staff conducted a survey of other relevant authorities to assess whether any of them had experienced damage to their commercial interests as a result of responding to similar requests. The evidence pointed to little, if any, damage to their commercial interests. Neither of the councils had been provided with any information about the Commissioner’s investigations or their results and they had not had the opportunity to respond to the Commissioner’s findings. They had not been given the opportunity to explain why, in their situation, the result would be different. The Court held that the procedure had been unfair and that the Commissioner should have given the councils notice of any relevant material adverse to their position, and invited their comments.

Glasgow City Council and Dundee City Council v Scottish Information Commissioner [2009] CSIH 73

It is a feature of a fair procedure or decision-making process that the person affected by it will know in advance how it will operate, and so how to prepare for it and participate in it. That is the importance of due process.

Human rights, equality legislation and certain aspects of retained EU law may also require that a fair procedure is followed.

At each stage of a process, a decision-maker should ensure that such issues have been properly considered and that rights or duties have been respected or followed, as appropriate.

A local authority appealed against a decision to quash its refusal of an application by a company for a licence for a sex shop in Belfast. The decision had been quashed on the grounds that it was incompatible with the owner’s human rights under Article 10 (freedom of expression), of, and Article 1 of the First Protocol (protection of property) to, the European Convention on Human Rights because the local authority had not taken those rights sufficiently into account when making its decision. The Court held that it was concerned with whether the sex shop owner’s human rights had been infringed, not with whether the local authority had properly taken them into account when making the decision. The Court held that it was acceptable for the local authority to interfere with the shop owner’s human rights, although the local authority had not taken these matters into account. But where a public authority has carefully weighed the various competing considerations and concluded that interference with a human right is justified, a court would give due weight to that conclusion in deciding whether the action in question is lawful.

Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19

The courts may find that in the interests of fairness additional conditions should be placed on the exercise of statutory or other executive powers. For example, the courts may insist that, before a decision is made, any of the following is required:

• disclosure of the reasons the decision-maker intends to rely on;
• an opportunity for consultation or making representations;
• an oral hearing where appropriate.

And after the decision:

• disclosure of material facts, or the reasons for the decision.

See also in particular

question four

Is there a policy on the exercise of this power?

question five

Does anyone have a legitimate expectation as to how the power will be exercised?

question eight

Will I be complying with human rights law?

question nine

Will I be complying with retained EU law?

question ten

Will I be complying with equality legislation?

Relevant considerations might also be:

• the right to be heard and procedural conditions in legislation (see question thirteen);
• have I consulted properly? (see question fourteen);
• do I need to give reasons? (see question twenty-one).

Question sixteen - 16 Could I be, or appear to be, biased?

One of the rules of natural justice is that “no one shall be the judge in their own case”. If a decision-maker has a financial or other interest in the outcome of the case, the decision-maker cannot be, or be seen to be, impartial. The rule helps to ensure that the decision-making process is not a sham because the decision-maker’s mind was always closed to the opposing case. It deals not only with actual bias, but with the appearance of bias: hence the saying “justice must not only be done, but be seen to be done”. Nobody should be able to allege that the decision was a fix because the decision-maker was biased, whether or not there was any truth in that allegation. The rule must be observed strictly to maintain public confidence in the decision-making process.

Impartiality is the opposite of bias. Its importance is enshrined in human rights: Article 6 of the European Convention on Human Rights (right to fair trial) requires that a tribunal must be, and have the appearance of being, impartial and independent. The rule against bias also applies to administrative decision-making (where there may be no “tribunal” as such) just as it does to the courts. It is prudent to have procedures available so as to avoid bias, or any appearance of bias. If, for example, the applicant for a grant is known personally to the decision-maker, or the decision-maker has dealt with the applicant before and decided against the applicant or expressed a view adverse to the applicant, it may be appropriate to refer the application to a different, or more senior, official.

The principle can have practical implications for the process by which a decision is made. Very often, when legislation requires that a public authority make a decision on an application, it (or the officials acting in its name) will require some sort of technical input, or it may be necessary to ask inspectors to carry out an investigation. In order to ensure as much impartiality as possible, it may be necessary to have structures in place so that there is a separation between the people providing the technical input/carrying out the investigation, and the officials taking the decision or submitting the matter to Ministers (when their personal decision is required). This will reduce the risk of an unsuccessful applicant claiming that the decision-maker was not impartial due to being too involved in the case, or had pre-determined the application.

The “independence” of a decision-maker is different from, though closely linked to, impartiality. It refers to independence from external pressure or influence. It has much more direct relevance to judges (by reason for example of the way they were appointed) or the courts themselves than it has to administrative decision-makers, who will often be civil servants appointed to carry out government policy or otherwise work towards securing the objectives of their employer. But even when a decision-maker is obliged to carry out a policy, the decision-maker must keep an open mind, and any lack of independence should be curable by the availability of judicial review by a fully independent court.

Actual bias is rare: most cases are concerned with the appearance of bias. The test is whether, in all the circumstances, the fair-minded and informed observer, having considered the facts, would conclude that there is a “real possibility of bias”: that is, not a remote or insignificant risk. If there is, the decision will be set aside. Not only do you need to be sure that you are free of actual bias before making a decision, you also need to consider not acting as decision-maker if there is a real danger that your impartiality might be open to question.

If parties know of a decision-maker’s interest or previous participation (because, for example, the decision-maker tells them), they can agree to waive the objection. If you are aware of any reason why you might be thought to be biased, it is wise to declare it at the outset. If the objection is waived, then it is very unlikely that there could be any objection taken later.

In some rare circumstances, a decision-maker who might otherwise be disqualified can still act, if the decision needs to be made, and cannot be made without that person. You should not decide to act in these circumstances without seeking advice on whether there is some way around the difficulty.

See also in particular

question eight

Will I be complying with human rights law?

question fifteen

Will I be acting with procedural fairness towards persons who will be affected?

The deputy governor of a prison heard disciplinary proceedings against a group of prisoners for disobeying an order to be strip searched. The prisoners argued that the order to strip search them was not lawful. The deputy governor of the prison had been present when the order was given. The deputy governor decided that the order had been lawful and found the prisoners guilty of an offence against discipline. The prisoners challenged that decision on the grounds of the deputy governor’s apparent bias.

The Court found that this was apparent bias. The deputy governor had given tacit endorsement to the governor’s order by being present. When ruling on the lawfulness of the order, a fair-minded observer could all too easily think him predisposed to find it lawful. If the deputy governor had found the order unlawful, he would be acknowledging that he had been wrong to acquiesce in it. To have avoided the appearance of bias, he should either have made it plain that he had been present, and sought the consent of the prisoners to him hearing the disciplinary proceedings, or else stood down. The findings of guilt were quashed.

R (on the application of Carroll) v Secretary of State for the Home Department [2005] UKHL 13

Question seventeen - 17 Am I handling data in line with data protection or freedom of information obligations?

Data protection

“Personal data” is defined as any information which relates to an identifiable individual and when held by public authorities (and private companies, organisations and some individuals when held for commercial or professional activities) is governed in the UK by the UK General Data Protection Regulation (UK GDPR), and the Data Protection Act 2018 (DPA 2018). The UK GDPR is retained EU law, and the DPA 2018 supplements the UK GDPR, including providing for restrictions on some of the rights the UK GDPR gives to individuals in particular circumstances, and covering some areas that the UK GDPR does not apply to, such as processing for law enforcement purposes and processing by intelligence services. “Processing” covers any use of personal data, from creation and collection to storage, editing and deleting – so simply having personal data sitting unused in a file means your organisation is processing personal data.

Where it applies, this legislation restricts the use you can make of personal data, and creates a number of individual rights related to that information. There are a wide range of exemptions which may apply, e.g. national security, and where disclosure is required by law. However, you should proceed on the basis that any information that you receive or generate about an individual could end up being seen by that individual. You should ensure that all personal information is, amongst other things, accurate, up-to-date, gathered and held for a clear purpose, stored securely, and that your organisation is accountable for its use of personal data. More guidance is available from the Information Commissioner’s Office on the general requirements.

Issues often arise around sharing personal data obtained for one public purpose for another (usually known as “data sharing”) either between public authorities or within a single public authority. Information should only be accessed and used in decision-making when there is a proper lawful basis for you to share the information.

There is detailed guidance available.

Freedom of information

Under the Freedom of Information (Scotland) Act 2002, anyone has the right to be given information held by Scottish public authorities. The requester does not have to give reasons for their request.

You should bear in mind when making a decision, that the information you hold (unless held on behalf of another person, or held in confidence, having been supplied by the UK Government), including the material that you generate in the course of the decision-making process may subsequently require to be released. Information about the decision may also be published proactively.

There are a wide range of exemptions, though most are subject to the public interest test. Where that test applies, it has to be considered in relation to each piece of information.

Information should be released unless the public interest in favour of withholding it outweighs the public interest in releasing it.

A requester who is unhappy with your response to a freedom of information request can ask your organisation to carry out an internal review and, if still dissatisfied, apply to the Scottish Information Commissioner for a decision.